YLH&Co is a Lahore-Pakistan-based full service law firm committed to law and information about the law. The primary practice area of the law firm is internet law, information technology law, telecom law and cyberspace laws and security.
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Thursday, June 30, 2011

It is instructive for lawyers everywhere to read the media commentary on the performance of Bush appointee Justice Roberts' court in the term that just ended.

I was especially struck by New York Times' commentary yesterday. Adam Liptak wrote in the aforesaid newspaper:

The Supreme Court term that ended Monday was marked by accomplishment and anticipation. The court continued its work on two signature projects of Chief Justice John Roberts: defending free speech and curbing big lawsuits. And it dropped occasional hints about the blockbusters on the horizon... In cases involving the nation’s largest private employer, Wal-Mart, and the nation’s second-largest cellphone company, AT&T Mobility, the court tightened the rules for class actions and made it easier for companies to do away with class actions entirely by using form contracts. All of the decisions this term were scrutinized for clues about the arc of the Roberts court as it settles into a period of consolidation and awaits a series of colossal cases, notably the challenges to the health care law championed by President Barack Obama. This term was significant, but the next one may include the most important clash between the Supreme Court and a president since the New Deal.

Monday, June 27, 2011

The primary argument against the procedure of appointment of the superior judiciary as laid out in the Al-Jehad Trust case was that it placed too much power in the hands of the Chief Justice of Pakistan. Since the consultation of the Chief Justice was considered as binding, it was thought that this increased the chances of a Chief Justice exercising his power to appoint judges arbitrarily rather than having accord to qualifications such as seniority.

Furthermore, it was argued that the appointment procedure reduced the role of the executive to that of a rubber stamp, as the President’s reasons for rejecting a nominee of the chief justice could ultimately be struck down by the Court under the aegis of the Chief Justice. This did not seem to be resulting in an “efficient” operation of the constitution, in the words of British economist Walter Bagehot.

Friday, June 24, 2011

New York has legalised Gay Marriage. Congratulations gay activists who have fought for this right for a long time.

New York, the third most populous state, will join Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the Washington capital district in allowing same-sex couples to wed.
"Once this is signed into law, the population of the United States living under marriage equality doubles," said Ross Levi, executive director of the Empire State Pride Agenda in an interview. "That's certainly going to have a ripple effect across the nation. It's truly a historic night for love, our families, and democracy won."
Though New York is a relative latecomer in allowing gay marriage, it is considered an important prize for advocates, given the state's size, New York City's international stature. The gay rights movement is considered to have started with the Stonewall riots in New York City's Greenwich Village in 1969.

The Islamisation process in Pakistan has been debated in detail in our national press, but what most commentators fail to take into account are the social and material conditions surrounding the push for Islamisation especially in the early 1980s. It is the view of this author that Islamisation in Pakistan has been a cynical response by the economic elites of Pakistan to both the forces of socialism and Islamism. In the process the economic elites have been willing to give Islamists a space in the society and influence over non-economic matters provided they keep themselves out of economic matters. This strategy however has only found limited success and a full blow back of this became evident when the entire banking sector was under the Sword of Damocles throughout the 1990s when an ill-advised and ill-conceived judgment of the Federal Shariat Court threatened to bring it down to its knees.

New York Court of Appeals has given a landmark judgment by ruling 5-2 that innocent divorcees can keep money that was gathered fraudulently by their spouses.

The judgment came in the case of Stephen Walsh and his wife, Janet Schaberg, who had split up in 2007. The financial regulators found Stephen Walsh and Paul Greenwood guilty of defrauding USD 550 million. A federal judge had frozen 7.6 million USDs of Schaberg's money.

All England Law Reports — the most reliable record of English case law — date back to 1558. Recorded case law dates back another 400 years prior to that. In 1558, the English began to see the benefit of compiling and publishing case law for easy reference.

Institutions like Lincoln’s Inn had already been serving the legal community since the 13th century when a papal decree forbade clergy from teaching common law, thereby separating temporal law from the church. Thus, by the time All England Law Reports were being organised, the modern English legal system was already into its third or fourth century. Consider, then, that in 1558, Mughal emperor Akbar the Great ruled as a despot with a remarkable concentration of power and Suleiman the Magnificent ruled the Ottoman Empire as God’s shadow on earth. These two great monarchs were literally the law, while in England, the greatest queen to rule the western world, ruled limited by the Magna Carta — arguably the world’s first modern constitution.

The lower house of the Dutch Parliament this week voted to approve net neutrality legislation; if passed, it will make The Netherlands the first EU country to pass a law addressing the subject.

The Dutch Senate must now approve the bill, but according to the Telegraph and the BBC, it is expected to pass.

Specifically, the Dutch bill would ban Internet service providers from charging higher fees or blocking Web-based communications services like Skype. It would also require providers to get consent before placing "cookies" on a user's computer, a concept known in the states as "do not track."

Providers in the region are not pleased. According to the Telegraph, T-Mobile and Vodafone were looking to block services like Skype on their smartphones. Vodafone did not immediately respond to a request for comment, but told the BBC that the legislation will "lead to a large increase in prices for mobile internet for a large group of consumer," while provider KPN said Parliament should have taken more time crafting the bill.

The Dutch law, however, is part of a package of EU telecom bills adopted in 2009, which had an implementation deadline of May 25, 2011, according to an EU spokesman. All member states have to notify the commission about any legislative measures they've taken to implement these rules so that the commission can verify compliance. The Dutch, therefore, will notify the EU once the Senate has given its approval to the measure. "National law must comply with EU law, notably in cases where EU law harmonizes legislation in a particular area," the spokesman said. "Where EU law does not impose harmonised requirements, member states remain free to legislate as they please as long as they do not violate the fundamental principles of EU law laid down in the Treaty. The Commission would only challenge Dutch law if, after studying it carefully, it considered that it was not in compliance with EU law."

THIS spring was a rough season for the Fourth Amendment. The Obama administration petitioned the Supreme Court to allow GPS tracking of vehicles without judicial permission. The Supreme Court ruled that the police could break into a house without a search warrant if, after knocking and announcing themselves, they heard what sounded like evidence being destroyed. Then it refused to see a Fourth Amendment violation where a citizen was jailed for 16 days on the false pretext that he was being held as a material witness to a crime.

Thursday, June 23, 2011

The issue of appointment of the superior judiciary in Pakistan came into the limelight recently with the passage of the Eighteenth and Nineteenth Amendments to the Constitution of Pakistan. The aim of this article is to elucidate the mechanism for appointment of the superior judiciary in Pakistan before and after the passage of these amendments.

Before the Eighteenth Amendment

Prior to the promulgation of the 18th Amendment, the appointment process for Supreme Court judges was pursuant to Article 177 of the Constitution and that of High Court judges to Article 193. The relevant portions of these articles are reproduced hereunder:

Any legal scholar picking up jurisprudence in Pakistan would be under the impression that Pakistan and India never separated. The reliance Pakistani jurists, judges and lawyers place on Indian judgements and case law is phenomenal. Indian precedents are not just persuasive – as in the case of English judgements and some American ones – but are given the status of near-law. This is hardly surprising, of course, given that most of the laws in Pakistan and India predate independence and very few, if any, have been updated in Pakistan. What is definite, however, is that Indian jurists and lawyers are certainly far superior as a whole when it comes to expounding law.

Double Shah had shocked the nation some time ago. Now LHC has directed NAB to receive claim of Rs. 60.45 m against Double Shah.

LHC directs NAB to receive claim of Rs 60.45m against Double Shah

Staff Report

LAHORE: Chief Justice (CJ) Ijaz Ahmad Chaudhry of the Lahore High Court (LHC), on Wednesday, directed the National Accountability Bureau (NAB) to receive claim of Rs 60.45 million against the fraud-accused Syed Sibtul Hassan Gillani alias Double Shah and also file a supplementary reference against him.

The CJ issued the direction on a petition filed by Ahsan Allah Ranjha who had worked as an agent for Double Shah. The petitioner said that he had given Rs 60.45 million to Double Shah for business but he had not returned the principal amount or the profit.

He submitted that after Double Shah’s arrest he had approached the NAB to submit his claim but NAB refused to entertain it. He said that the LHC, after listening to his petition in 2009, had ordered the NAB authorities to entertain his claim but the order had not been implemented so far.

Ranjha is currently living abroad. He said that he had tried contacting the NAB several times, asking them to record his statement through his attorney and entertain his claim, however, no action had been taken as yet. He requested that directions be issued to the NAB for entertaining his claim. In reply to the petition, the NAB’s counsel said that the petitioner had never approached the bureau. The CJ finally issued directions to the NAB to receive the petitioner’s claim.

Wednesday, June 22, 2011

1. INTELECTUAL PROPERTY
Intellectual Property laws include the copyright laws, patent laws and trademark laws. Intellectual Property is often the most valuable and least protected asset of many businesses and creative individuals. This area of law protects the work of creative individuals and businesses and protects such creation from unauthorized use or exploitation by third parties. By utilizing Intellectual Property laws, creators and innovators can fully protect and benefit from their creations.

This opinion covers the benefits and legal requirements of establishing a charitable foundation.

In general, a charity is an organization established for humanitarian purposes. It may make a profit but all profits should be applied in furthering the charitable purpose of the organization. The owners, members, trustees or other private persons who may control or influence the organization may not use the profit of the charitable organization for their personal gain.

Pakistan’s armed forces are a wing of the Federal Government of Pakistan, which controls defence (through Chapter 2 of Part XII of the Constitution of 1973 and the federal legislative list) as a purely federal subject. The chairman of the Joint Chiefs of Staff Committee, and the army, air and navy chiefs are appointed public servants carrying out responsibilities that fall in the purview of defence.

It is extraordinary when people who otherwise have nothing to do with constitution and law use fundamental rights to forward their own narrow agenda. Article 19-A was introduced by the legislature through the 18th Amendment to create transparency in matters of public importance. Similarly Article 14 is a longstanding fundamental right promising dignity of life. Ironically Hafez Saeed- who does not believe in democracy or fundamental rights- has filed a petition through A K Dogar in the Lahore High Court.

Jamatud Dawa chief Hafiz Saeed has moved a constitutional petition in the Lahore High Court seeking implementation of a resolution unanimously passed by parliament against the US drone attacks in Pakistan.

Hafiz Saeed filed the petition on Tuesday through his counsel AK Dogar and also pleaded that the federal government might be directed to make public the ‘secret deals’ with the US as under Article 19-A of the Constitution every citizen of Pakistan had the right to have access to information.

Book Recommendation: Fixing the War Powers Act (The Heritage lectures)
Bruce Ackerman's article is worth reproducing. The issue of presidential powers vis a vis the Congress on the issue of war has been the subject of much debate. Here are a few excerpts which I found enlightening:

Last Sunday was the 90th day of bombing in Libya, but Mr. Obama — armed with dubious legal opinions — is refusing to stop America’s military engagement there. His White House counsel, Robert F. Bauer, has declared that, despite the War Powers Act, the president can continue the Libya campaign indefinitely without legislative support. This conclusion lacks a solid legal foundation. And by adopting it, the White House has shattered the traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years.

Perhaps the most interesting legal development through the 18th Amendment to the constitution of Pakistan was the introduction of Article 10-A, which reads: “For the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process.” This article exists under the unceremonious heading of ‘Right to fair trial’ but is nothing less than a revolutionary concept for a country like ours where liberty has so often been the victim of expediency, state oppression and the tyranny of the permanent majority. What it does — and, unfortunately, this is not appreciated enough by our jurists — is create within our constitution the idea of substantive due process above and beyond procedural due process that its heading seems to betray.

As part of the Jinnah Institute’s Open Democracy initiative, ‘A Question of Faith’: A Report on the Status of Religious Minorities in Pakistan’ is a research-based analysis of the same. It documents the deterioration in the political, economic and social status of members of these communities in the context of the rising tide of vigilante violence and religious extremism in the country.

Two critical questions are addressed by the findings of this report. First, will Pakistani continue to discriminate against its citizens and turn a blind eye to the spread of cultures of cruelty and vigilantism? Second, will the majority of Pakistanis continue to condone and collude in the discrimination and persecution of minorities? These questions have become particularly relevant over the past year which saw violent attacks against the Christian and Ahmadi communities; extremist protests against amendments to the controversial blasphemy laws; and a rise in the number of cases of blasphemy brought against members of minority communities. The brutal assassinations of two staunch advocates of minority rights Salman Tasseer, Governor of the Punjab and Shahbaz Bhatti, Federal Minister for Minorities highlight the fact that urgent action is needed, and the recommendations of this report (pp. 7-10) need to be addressed.

Islamic tradition, in many ways, can be described as a tradition of literature and one way to legitimately analyze the above question is to ask whether the core Islamic texts, i.e., Quran and Hadith are necessarily patriarchical [1]. Although it is true that Quran was originally revealed in a primarily patriarchical society and, at least in Islamic tradition’s formative and post-formative periods, interpreted mostly by the subjects of patriarchies, its text equally allows more coherent, less subjective and unauthoritarian interpretations to contest the popular traditionalist (or orthodox) interpretations with a visible patriarchical bent [2].

Monday, June 20, 2011

(On Long Divergence- How Islamic Law held back the middle east an excellent book which I recommend wholeheartedly-YLH)

By Timur Kuran

To start with the underutilization of female labor in the Middle East, we need to distinguish between pre-industrial and modern times. It is only in the past century or two that the abilities of Middle Eastern women have been underutilized by global standards of the day.

Until industrialization, women were restricted players in economic life everywhere. In western Europe, as in the Middle East, high birthrates kept women focused on childrearing and household chores, limiting their participation in commerce and finance. They did control assets, of course, including real estate. Although no systematic comparative study exists, there are grounds for believing that Middle Eastern women controlled more assets, not less, than Western women. Most critically, whereas Middle Eastern women received around one-third of all estates, in substantial parts of the West women did not share at all in inheritance settlements.

Saturday, June 18, 2011

When all the heirs of those murdered by Davis pardoned him for badl-i-sulh , the religious right cried foul. Technically there was nothing wrong procedurally and legally with the way Davis’ alleged crime was pardoned under law. The religious right claims that (i) that the heirs of the two victims were pressured into accepting badl-i-sulh , (ii) that Davis should have been convicted for fasad fil arz and (iii) the judge’s decision to impose a fine of Rs.20,000 and time served under Section 13 of the Arms Ordinance of 1965 was far too lenient under the circumstances.

Friday, June 17, 2011

The question of legality of American drone strikes in Pakistan’s tribal areas is one that hits at the core of the laws of war and international law. Two questions need to be asked for us to better understand this debate.

Thursday, June 16, 2011

The 18th Amendment to the constitution was welcomed by all who want to see Pakistan a truly federal, progressive and democratic state where the federating units and the centre are balanced in terms of power and rights. Pakistan vests residuary powers in constituent units but the net thrown by the federation – federal and concurrent legislative lists – was so wide that residuary powers amounted to very little. The abolition of the concurrent list devolves real powers to the provinces.

18th Amendment introduced Article 10-A to the Constitution of Pakistan. Consequentloy we have seen litigators in Pakistan challenging the Financial Institutions (Recovery of Finances) Ordinance 2001 on the ground that sections 9 and 10 of the statute attach a presumption of accuracy to bank's documents. It is therefore not out of place to consider how US- where due process comes from (see 14th Amendment of the US Constitution) - has tackled the challenge to the law of presumptions:

The question before us is whether the SECP could remove a member of the exchange in powers given to it. The answer to this question is yes.

7(1)d of the Securities and Exchange Ordinance 1969(“SEO”) reads:

“Where the Commission is of opinion that an Exchange or any member, director or officer hof the Exchange has contravened any provision, or has otherwise neglected or failed to comply with any requirement, of this Ordinance, or of any regulation or direction made or given thereunder, the Commission if it considers it necessary for the protection of investors or to ensure dealings or fair administration of the Exchange so to do by order in writing, -

The State Bank of Pakistan (“State Bank”) in its document Understanding Credit Information Bureau Consumer Awareness Program(available on the State Bank’s website) says:

“Disclosure to third party is strictly prohibited under the law. Thus individuals and corporate entities are not entitled to obtain theircredit information reports.”

The State Bank bases this contention on Sections 25-A and 33-A of the Banking Companies’ Ordinance 1962 (“BCO”), and Sections 8 and 17 of the Freedom of Information Ordinance 2002 (“FOIO”).This contention is based on a misreading – deliberate or otherwise- of the above-stated provisions.

1.First there is no reference to a third party in any of the aforesaid provisions.2.Second third party is a generic term indicating a person who is not party to a transaction but affected by it. Even if it is conceded that for the limited purpose of Credit Information Report (“CIR”), a borrower constitutes a “third party”, the aforesaid statement finds no support in law. The statute confers on the State Bank discretion vis a vis the CIR which is to be exercised in the prescribed confines of law and constitution. In other words, it is a discretion fettered by constitutional rights of citizens and persons.

The history of criminal breach of trust is found in common law in offences against property. As such a breach of trust is a breach by a person in fiduciary capacity and when the intent to defraud the owner or beneficiary of such property is established the breach of trust becomes a criminal breach of trust. In such an event, a trustee or a person in such fiduciary capacity becomes criminally liable for offences as under: